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May 27, 2009

The Sotomayor Nomination: The Morning After

by Clerquette

Well, Groupies: we had a lot of excitement yesterday. Some of you may have dined heartily from the buffet of Judge Sotomayor ("SS") coverage, and awakened feeling a bit over-served. Others may have approached the rich sampling of "Sotmayors d' oeuvres" with more moderation, and be feeling slightly less satiated. Still others may have to sheepishly admit to some late-night interweb activity, during which [arguably excessive] consumption of nomination-related materials occurred. This blogress sees nothing wrong with the last of these categories, or, for that matter, admitting that one is powerless over judicial gossip.

So, dear readers: where are we on the Morning After the big event ... and where do we go from here? The wonderfully distinguished folks over at SCOTUSblog have done the math, and determined that, in the last 30 years, the average spread between nomination and confirmation has been 72 days. Clerquette can't help but wonder what those days will bring. Will the disco ball of SCOTUS glamor illuminate the next 72 days, blinding judicial stargazers with 1,000 (or more) points of light? Or will the confirmation process follow the path of a high school quarterback, peaking early and then attempting to reclaim the glorious sheen of yesteryear?

The above-signed blogress can't help but wonder whether we're bound for Door #2. While it's only the morning after, the chatter on both sides is remarkably tame. On the pro-SS side, the plaudits are standard issue: effusive and slightly over the top, as one might expect. Sotomayor "has been hailed as one of the ablest federal judges currently sitting;" she was a "fearless and effective prosecutor;" she saved baseball. Commentary by detractors is also ho-hum: theoretical opponents insist that she is a "liberal activist of the first order"; that she is a "racist" who does not appreciate the finer points of white men; that she is a "kind of a bully on the bench." That she shot a man in Reno, just to watch him die.

But even the most voiciferous criticisms strike this blogress as, well, somewhat flaccid. Why (you ask)? Because, Groupies: it appears that POTUS may have picked a candidate who is as bulletproof as they come. Her backstory could be the script for an inspiring Lifetime movie. Her academic credentials are beyond reproach. Her personal life (SS is divorced with no children) seems sterile enough to guarantee that there are no slyly-paid nannies in the closet and no Alfred Pirro (or Bill Clinton!)-esque husband with naughty proclivities. And, as one who has served the public for most of her career, she seems an unlikely candidate for complex financial pecadilloes, or an unfortunate game of "How Many Houses do I Own?"

But wait: there's more to Sotomayor's magical forcefield. Take the claim that SS is "racist," por ejemplo: it seems to have originated with Rush Limbaugh. Two words: Credibility fail. In addition, SS's discussion of how her judicial philosophy is informed by being a Latina woman can hardly be attacked without the risk of offending Latinos and women, whom the GOP can ill-afford to piss off. What about the claims that she is a judicial activist? Well, upon closer examination, her comments on that subject were somewhat non-committal, and more in the nature of an observation than a firm "Yes we can ... make policy at the Court of Appeals level!" proclamation. (See also Ricci, in which SS was not nearly active enough for some.)

Finally, some have observed that her opinions are "exhaustive but often narrow," and best described as "technical," "incremental," and evincing "unflashy competence." In other words, they are par for the course. As former members of the court family are well aware, for every sexy case that comes down the pike, there are countless others which push the limits of one's tolerance for the dormant commerce clause, the meaning of a particular ERISA provision, or anything related to the law of the sea.

Given POTUS's successful selection of a nominee who may well walk between the raindrops of a confirmation-related storm front, the "question presented" is this: what will the conversation turn to?? SS's hair? Her clothes? Her (gasp) implicit endorsement of gambling, in the form of law clerk card games at Chez Sotomayor? Please, dear readers, share your thoughts!